This note is about the current constitutional and legal issues in discussion. For basics, please read M Laxmikanth.
Evolution of constitution and its relevance
Following things were adopted in the Indian constitution from the historical acts during British India –
- Regulating Act 1773 – Concept of Supreme Court
- Pitt’s India Act 1784 -Separation of military and commercial powers of East India Company
- Charter Act 1853 – In form of a legislative council, legislature first finds place and civil services opened to Indians
- Indian Council Acts 1861, 1892 – More autonomy to provinces, Budgeting activities started, Indians given right to discuss budget, concept of portfolio distribution, concept of ordinance.
- Minto-Morley reforms 1909 – Right of asking supplementary questions and moving of resolutions given to Indians. It is an important parliamentary procedure.
- Govt of India Act 1919 – Concept of direct elections, Diarchy at provinces, bicameralism at centre, provinces could make their own budgets, establishment of UPSC
- Poona Pact made the British repeal the concept of separate electorates for backward classes
- Nehru Report in 1929 made basic provisions for fundamental rights and a joint electoral system based on uniform adult franchise
- During 2nd and 3rd round table conference, white paper of draft Indian constitution was circulated which contained suggestions like diarchy at centre, provincial autonomy.
- Govt of India Act 1935 incorporated the above suggestions along with bicameralism at provinces and separate public service commission at states. Also, union, provincial and concurrent lists.
Smaller States- Good or Bad
- Smaller states make sense only when Indian federalism is restructured to give more autonomy to states.
- Plus, if states are bifurcated, it will set a chain reaction. India so much diverse that people can demand a separate state on almost any parameter.
- State is not just an administrative unit but is seen as linguistic identity. If it is to be split, resistance will be seen just like UP, AP, MH
- Dominant castes exist in states. The prospect of their population being divided will affect caste based equations in politics which is why resistance from them.
- Ease of elections once smaller states. Reduction of disproportionate influence of big states especially UP and MH.
Old demand but came up after Bengal govt made Bengali language compulsory up to 9th standard. Border state, violence, lack of development. Gorkhaland Territorial Administration already exists. More autonomy, financial powers, etc needed.
- Article 29 and 30 define religious as well as linguistic minority.
- No definition of minority in constitution. In National Commission for Minorities Act 1992, powers are given to central govt to decide.
Accordingly, 6 communities declared minority
- TMA Pai Foundation case said that State wise demographics will be the unit for classification of minorities.
- Issue of minority definition- state as well as center decide, inconsistency, state wise differences, political appeasement, no clear definition in constitution.
- Overall, numerical inferiority and powerlessness are parameters to define minority. In world, less than 5% population is standard definition
- State wise classification is done for SC ST too. Plus benefits under article 29,30 would open up for state minorities
- Special rights for minorities- article 14,15, 29 and 30. Article 350 talks of special officer for linguistic minorities. National commission for minorities, schemes, three language formula, primary instruction in vernacular languages.
- AK Gopalan vs State of Madras 1950 – FR are paramount
- Champakkam Dorairajan vs State of Madras 1951- In case of conflict between DPSP and FR, FR prevail
- Kesavananda Bharti – FR and DPSP are complementary to each other
- Minerva mills case 1980- If DPSP compromises FR and such a law is outside judicial review, it destroys basic feature of constitution.
Rulings of SC wrt Fundamental rights and basic feature of constitution
- Shankari Prasad vs Union of India 1951 – a constitutional amendment is not a law and hence can’t be challenged
- Golaknath case 1967- invalidated earlier judgment and held that an amendment is a law. It also said that the power of parliament to amend constitution comes from article 245,246 and 248 and not article 368 which is just a procedure
- Kesavananda Bharti 1973- 25th amendment act inserted article 31(c) that bypassed article 14 and 19 to implement socialistic principles of DPSP. SC invalidated it and said that parliament has the power to amend the constitution but not harm it’s basic structure.
- Indira vs Raj Narain case 1975- constitutional amendment to validate Indira’s election was turned down.
Differences between presidential and parliamentary system.
Reasons for adopting the parliamentary system in India-
- Familiarity with the system since last 30-40 years
- Nature of Indian society which is homogeneous and hence can be represented properly
- No legislative and executive conflicts unlike the presidential system
- Stability vs responsibility. American system is stable but not responsible, British system is responsible but not stable. Hence, we adopted a republic with parliamentary system
British parliamentary system vs Indian system
- President is elected in India while it is hereditary in Britain.
- Parliament is sovereign in Britain while it is subject to judicial review and restriction in India
- PM has to be member of lower house in Britain. In India, he can be member of any of both houses
- ministers need to be members of parliament in Britain. In India, he can be a minister for max 6 months without being elected
- ministers don’t countersign official acts like Britain
- shadow cabinet of opposition exists in Britain which is not present in India
Is proportional representation needed?
Arguments in favour proportional representation
- Due to territorial representation, the one who gets majority votes wins. But it doesn’t have any scope for minorities to be heard.
- When seats are based in the proportion of the population, it will represent the entire population and not just the majority
- One of it’s type called single transferable vote is used to elect members of Rajya Sabha, legislative councils and President and Vice President
Arguments against proportional representation
- This will lead to even more fragmentation politically.
- Complex system which the people will find it hard to understand.
- In terms of seats, it becomes tedious to reserve seats for extremely small communities.
- Parochial nature develops which can be harmful for national unity and integration, especially in a country like India where innumerable fault lines exist.
Federalism is a system of government in which the same territory is controlled by two levels of government. In this system, the Central Government usually oversees the issues that are of importance for the entire country, whereas the government at the lower level looks after issues of local concern.
1st ARC in 1960s had talked of delegating more powers to states, especially financial resources, to reduce their dependency on states.
Important SC Judgments
- As per the judgment, Governor can act without the aid and advice only when a government has lost its majority in a floor test.
- Judgment also ruled that the Governor is not the conscience-keeper of the “Legislative Assembly” and that he had to stay away from the business of the Assembly.
- Speaker can’t use ADL powers when a resolution of removal is instituted against him. The court thus gave relief to dissident MLAs.
• It was on dissolution of Bihar assembly- The governor’s report could not be taken at face value and must be verified by the council of ministers before being used as the basis for imposing President’s rule.
B.R. Kapur versus State of Tamil Nadu in 2001 that the Constitution does not give elected members of a majority party unfettered right to elect an incompetent or disqualified person as chief minister.
• It is on question of removal of governor
- Can’t be removed arbitrarily
- Can’t be removed on the basis of difference in ideology
- No reason to be provided at the time of removal, however, if PIL filed in SC, then the centre will have to provide a reason for removal. If reason is arbitrary, governor will be reinstated
- President does not have infinite power to use A356
- Although Article 74(2) makes advice given by CoM to president outside judicial review, SC can go into the propriety of the material given to him
- The parameters to declare president rule valid are three – is the material proper, is it relevant and is there any misuse of Article 356
- A situation of maladministration and corruption charges against the ministries are also valid reasons for president rule.
- SC can restore assembly by striking down the proclamation.
- Use following in answers relating to center-state relations ( Sarkaria commission – 1980s )
- Article 356 (President’s rule) should be used very sparingly, in extreme cases as a last resort when all the available alternatives fail.
- The Centre should consult the states before making a law on a subject of the Concurrent List
- The procedure of consulting the Chief Minister in the appointment of State Governor should be prescribed in the Constitution itself
- When the President withholds his assent to the state bills, the reason should be communicated to state government
- Consultation with States while legislating on matters in Concurrent List • Governors –
The “pleasure doctrine” coupled with the lack of an appropriate procedure for the removal of Governors is inimical to the idea of Constitution. Thus, a procedure to impeach a governor like article 61 for president should be put in place
Time limit for giving assent for a bill by governor under article 200. Governor should insist the CM to prove his majority on the floor within a time limit.
5 years fixed tenure, no entry into active politics after that.
- Rajya Sabha- the commission supports equal representation to all states in Rajya Sabha. It feels that the principle of seats on population has been tried in LS and no need of its duplication.
Possible Changes in post of Governor
- Abolish it altogether. But who will perform the duties in case no party has full majority?
- A German model can be adopted where provincial heads report directly to president than any governor.
- C Rajagopalachari advocated governors for regions than states for holistic view. Eg- one governor for entire northeast. Logic is that firefighters are important but can’t be present in every street.
Critical Evaluation of the Federal System
- It is said India is a federal system with a unitary tendency.
- The word ‘federal’ is not used in the constitution. We are mentioned as a ‘union’ of states and not a federation. Combining with article 3, this makes India an indestructible union of destructible states.
- Several provisions right from emergency, center-state lists, appointment of governor, right to amend constitution, etc lie with the centre which makes India a quasi-federal structure.
- Sarkaria commission opined that if federal government is not powerful, it will result in chaos, interference and conflicting laws that will trouble the citizens. Thus it is indispensable for having a powerful centre. This can be seen from the background of the inclusion of 565 princely states after partition and the concern of keeping India united.
- Dr Ambedkar had said that centre and state are coequal and derive their power from constitution.
- However, Bommai case 1994 about rampant use of article 356, devotion of finances under 14th finance commission, establishment of Niti Aayog are recent examples of cooperative federalism.
- Also, Rajasthan’s amendment to labour laws was accepted by center under article 254(2), decision of applying FDI in retail was left to the states which shows centre’s readiness to give space to the states
Concluding, whether India remains a bargaining or cooperative federalism rests in the wisdom of the ruling government.